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COOPER v. DOWNINGTOWN SCHOOL DISTRICT ET AL. (02/02/76)

decided: February 2, 1976.

COOPER, APPELLANT,
v.
DOWNINGTOWN SCHOOL DISTRICT ET AL.



Appeal from order of Court of Common Pleas of Chester County, June T., 1974, No. 92, in case of William B. Cooper, a minor by his parent and natural guardian, Lois Tipton v. Downingtown School District and Richard H. Smith, M.D.

COUNSEL

Richard S. March, with him Galfand, Berger, Senesky, Lurie & March, for appellant.

Stephen J. Polaha, with him Arthur Levy, and Levy and Levy, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Dissenting Opinion by Jacobs, J. Cercone and Spaeth, JJ., join in this dissenting opinion.

Author: Price

[ 238 Pa. Super. Page 405]

This is an appeal of an order entered by the court below, sustaining the preliminary objections of the appellee, Downingtown School District, and dismissing the appellant's complaint against that appellee. The propriety of this order is now being questioned.

[ 238 Pa. Super. Page 406]

In December*fn1 of 1966, William B. Cooper, the minor appellant, was seriously injured while on property owned and maintained by the appellee, Downingtown School District. On June 10, 1974, the appellant filed a complaint in trespass, alleging, in part, that the appellant's injuries were negligently caused by the appellee. The appellee filed preliminary objections to the complaint contending, inter alia, that at the time the cause of action arose the doctrine of governmental immunity prohibited suits against school districts. The lower court sustained the appellee's preliminary objections on this basis and dismissed the complaint against it. We affirm the order of the lower court.

At all times relevant to the instant case, that is, from December, 1966, when the appellant was injured, until December, 1968, when the statute of limitations expired, the law of this Commonwealth prohibited suits against school districts by virtue of governmental immunity. The appellant made no effort to institute suit during the applicable limitations period. In fact, no complaint was filed until more than one year following the abolition of governmental immunity in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973).

In Snyder v. Shamokin Area School District, 226 Pa. Superior Ct. 369, 311 A.2d 658 (1973), this court indicated that Ayala would be applied to cases pending at the time Ayala was decided. Snyder is not controlling in the instant case because this suit was not pending, nor apparently even contemplated, in May of 1973, when Ayala was handed down. Moreover, the instant case could not have been pending at the time of the Ayala holding because the applicable statute of limitations expired four and one-half years beforehand.

From December, 1966, through December, 1968, this appellant had no legal redress for his injury. At all times

[ 238 Pa. Super. Page 407]

    during his limitations period, the courts of Pennsylvania consistently refused to hear suits against school districts. Therefore, he could not have recovered for his injury then, and we believe that he is also unable to do so now. Appellant made no attempt to "champion the cause," Ayala, ...


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